R v Chinmaya - [1994] QCA 281

IN THE COURT OF APPEAL [1994] QCA 281

SUPREME COURT OF QUEENSLAND

C.A. No. 178 of 1994

Brisbane
[R. v. Chinmaya]

BETWEEN

T H E Q U E E N
v.
MA PREM CHINMAYA

(Appellant)
Fitzgerald P.
Davies J.A.
McPherson J.A.

Judgment delivered 10/08/94

Reasons for judgment by the Court

APPEAL AGAINST CONVICTION DISMISSED.

CATCHWORDSCRIMINAL LAW - EVIDENCE - Cross-Examination under s.15(2)(c) Evidence Act 1979 - Whether discretion ought to be exercised to permit questioning of accused about prior convictions that disclose accused's propensity to commit offences of the kind charged.

Counsel:S.E. Herbert Q.C. for the appellant

B. Butler for the Crown

Solicitors:Legal Aid Office for the appellant

Director of Prosecutions for the Crown

Hearing Date:28 July 1994

REASONS FOR JUDGMENT BY THE COURT
Judgment delivered the Tenth day of August 1994

The appellant was found guilty at her trial in the Circuit Court at Cairns of one count of possession and one of supplying tetrahydrocannabinol, and also of a further two counts of possessing cannabis sativa. The evidence at trial disclosed that on 27 March 1993 police executed a search warrant at the address where the appellant lived. In the course of doing so a pillow case was discovered in a clothes basket in the residence.

It contained packets of marijuana. In addition, the appellant was seen to be concealing a small gold-coloured box on her person. When produced it was found to contain small amounts of hashish and cannabis. Pipes or instruments for smoking the drug were also found there.
In relation to each item the Crown adduced evidence of oral admissions made by the appellant when she was asked about it at her home. The appellant, who gave evidence at the trial, denied having made any such admissions and, in the case of the small box, denied ever having seen it before. She claimed to have been bewildered by the arrival of the police and to have been quite unaware that what they were doing was carrying out a drug raid.

In the course of the cross-examination of the appellant, the trial judge, on the application of counsel for the Crown, ruled that in terms of s.15(2)(c) of the Evidence Act 1979 the nature or conduct of the defence was such as to involve imputations on the character of prosecution witnesses, in the form of allegations that they had fabricated incriminating evidence against the appellant. For reasons he gave, his Honour exercised his discretion to permit cross-examination of the appellant concerning her criminal record.

Several different grounds are taken in the notice of appeal, but only one has been pursued before us. It is that the learned judge exercised his discretion wrongly in permitting cross-examination about the appellant's criminal record. She had, it emerged, a history of drug offences numbering some 13 or more dating back to 1972 and involving at least nine separate court appearances. In fact, apart from two infractions of the Traffic Regulations, all of her previous convictions appear to have involved the importation,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Chinmaya

Details

AGLC: R v Chinmaya [1994] QCA 281
Case: [1994] QCA 281
Decision Date: 10/08/1994

CaseChat Overview and Summary

The Supreme Court of Queensland heard an appeal from Ma Prem Chinmaya against her conviction for possession and supplying tetrahydrocannabinol and possessing cannabis sativa. The court was tasked with determining whether the trial judge correctly exercised his discretion under s.15(2)(c) of the Evidence Act 1979 to permit cross-examination of the appellant about her criminal record. The appellant argued that her numerous prior drug-related convictions demonstrated a propensity to commit the same type of offence, and therefore questioning about her criminal record should not have been permitted.

The court considered the purposes of s.15(2) and whether it was confined to informing the jury of the appellant's dishonesty. The court noted that the discretion to permit cross-examination about prior convictions is not to be exercised lightly and must be based on what fairness requires in the circumstances of the case. The court found that there was no rule that the discretion must be exercised against the Crown unless the circumstances can be described as exceptional. The court also rejected the appellant's argument that her numerous prior drug-related convictions should preclude cross-examination about her criminal record, as this would have unintended consequences.

The court found that the trial judge correctly exercised his discretion to permit cross-examination of the appellant about her criminal record and that there was no miscarriage of justice that would justify this court in intervening. Therefore, the appeal against conviction was dismissed.

The final orders of the court were that the appeal against conviction was dismissed.

Orders